A jury convicted Preston Lewis Harris of malice murder and two alternative counts of felony murder, armed robbery, theft by taking and possession of a knife during the commission of a felony. Concluding that the evidence sufficiently supported the verdict as to malice murder, the trial court imposed a life sentence for that offense, a concurrent life sentence for armed robbery, a consecutive ten-year term for theft by taking, and a concurrent five-year term for the weapons offense. See
Malcolm v. State,
1. Harris admits that he killed Tyrone Gay, but urges that, as a matter of law, he is not guilty of malice murder. He contends that the homicide was justified because he was forced to defend himself against a sexual assault by the victim.
Harris met Gay in Atlanta and accepted an invitation to spend the night at the victim’s Gwinnett County apartment. Despite some sexual innuendoes, the night passed without incident and, a few days later, Harris contacted the victim and asked for lodging. The victim agreed and drove into Atlanta to pick him up. He arrived to find both appellant and an acquaintance known only as “Rodney,” and the two accompanied him back to his apartment. After Rodney left, appellant voluntarily engaged in a homosexual act with Gay. Thereafter, the victim went to purchase cocaine for Harris’ consumption. After the victim returned with the drugs, they began another sexual encounter, but appellant became upset. He returned to the living room where he smoked the rest of the cocaine and drank more beer. When Gay continued to make suggestive remarks, Harris retreated toward the kitchen. The victim followed and became increasingly insistent. Harris picked up a knife and stabbed Gay multiple times. The victim ultimately died from massive bleeding caused by a knife wound to his heart and lung. Harris fled to Tennessee in Gay’s automobile, taking several items of the victim’s property from the apartment. The vehicle was found in Chattanooga a short time later. The driver informed the officers that he obtained the car from Harris. The Tennessee authorities brought Harris in for questioning, and he gave them a statement. When the Gwinnett County officers arrived shortly there *423 after, he also made a statement to them.
A person is justified in using deadly force “only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” OCGA § 16-3-21 (a). Thus, a homicide is not justified if the degree of force used by the defendant exceeds that which a reasonable person would believe necessary to defend against the victim’s unlawful actions. See
Clark v. State,
2. Harris filed a post-trial motion to compel the State to identify a latent fingerprint found in the victim’s car. The purpose of identifying the print was to determine whether it might have been left by Rodney, whose last name was unknown. According to appellant, Rodney was potentially an important defense witness who could corroborate that the victim was a homosexual and, thus, bolster the claim of justifiable homicide. Harris enumerates the denial of the motion as error.
Unlike DNA testing, the identification procedure requested by Harris would not prove his innocence. He admitted stabbing the victim, and the only question was whether he acted in self-defense. According to appellant, Rodney was not even present at the time of the homicide, because he left Gay’s apartment some time previously. Therefore, Rodney could not give eyewitness testimony about the immediate circumstances leading to the stabbing. In fact, Harris admitted that Rodney left before Gay broached the topic of sex. Thus, he could not even corroborate the victim’s sexual orientation.
The jury heard considerable evidence showing that the victim was a homosexual, including graphic testimony about photos of nude men that he apparently took. Even if the testing had shown that the print was Rodney’s and if he could be located and was prepared to testify as Harris contends, a new trial still would not be authorized, as he could only provide cumulative testimony which would be unlikely to produce a different result. OCGA § 5-5-23;
Spann v. State,
3. Appellant enumerates as error the admission of both of his in-custody statements. The evidence produced at the
Jackson-Denno
hearing authorized the trial court to find that Harris made his first statement only after the Tennessee authorities advised him of the
Miranda
rights and obtained a written waiver. The failure at the outset to identify the specific subject of the interrogation as the murder of Gay does not render the ensuing statement inadmissible.
Christenson v. State,
Because the initial statement was not “tainted,” Harris’ subsequent admission to the Gwinnett County authorities is not subject to the “fruit of the poisonous tree” doctrine. See
Moore v. State,
4. Although Harris enumerates as error the trial court’s failure to charge on voluntary manslaughter as a lesser included offense, he did not request such an instruction. While a trial court may charge on a lesser included offense on its own motion, the “failure to do so, without a written request ... , is not error.”
State v. Stonaker,
5. Relying on the “necessity” exception, Harris sought to introduce the pre-trial statements of two of Gay’s friends who identified him as a homosexual. The trial court determined that the evidence was inadmissible because of a lack of diligence by the defense in locating the potential witnesses. Appellant enumerates this ruling as error.
One of the determinative factors in the admissibility of evidence under the necessity exception is whether the party offering the evidence has made a reasonable effort to locate the hearsay declarant and to ensure his presence at trial. This is a strict standard.
Holmes v. State,
Moreover, the state did not dispute the victim’s sexual orientation. Other evidence to that effect was proffered and admitted for the jury’s consideration. Therefore, it was not crucial for the defense to introduce the cumulative statements of the victim’s friends. The only question for the factfinder was whether Harris committed a murder or a justifiable homicide. The victim’s two friends had nothing to add to that issue. Thus, even if the defense had shown that they were unavailable and that their statements were trustworthy, exclusion of the hearsay evidence still would not have constituted reversible error. See
Hooten v. State,
6. Several enumerations of error relate to the jury charge.
(a) Appellant requested a charge dealing with the credibility of a State witness who testifies under a grant of immunity or promise of leniency, but the trial court refused to give it based upon a lack of evidentiary support. The record shows that the trial court ruled correctly, as all witnesses for the prosecution who were facing criminal charges expressly denied receiving such a grant or promise in exchange for their testimony against Harris. A request to charge must be authorized by the evidence.
Kessel v. State,
(b) In charging on prior inconsistent statements, the trial court made what appellant concedes was a mere slip of the tongue. Although he enumerates the instruction as error, he does not contend that the misstatement was harmful and argues only that it was never corrected. Accordingly, this enumeration is without merit.
Gober v. State,
(c) Harris asserts that when instructing on “felony murder,” the trial court erred in referring to that crime as “murder.” There is only one offense of “murder” which can be “committed
either
with ‘malice aforethought’
or
while ‘in the commission of a felony.’ [Cit.]” (Emphasis in original.)
Lumpkins v. State,
(d) The trial court did err in charging on the inference of an intent to kill arising from use of a deadly weapon.
Harris v. State,
(e) Contrary to appellant’s contention, review of the record shows that the trial court’s recharge did instruct the jury that the burden was on the State to prove intent and to disprove self-defense beyond a reasonable doubt.
7. The trial court permitted the jurors to refer to a transcript of Harris’ statement to the Gwinnett County authorities while they were listening to a tape recording of that statement. The State provided the transcript to defense counsel before trial, and the sufficiency of its authentication was not challenged below.
Carey v. State,
8. The trial court denied Harris’
Batson
motion and upheld the State’s use of a peremptory strike to remove one of two African-Americans from the jury panel. As the reason for using the strike, the prosecution relied upon the prospective juror’s acknowledgment of a possible subconscious bias toward a criminal defendant and against the State, based upon his own younger brother’s experience with the criminal justice system. This admission of possible bias was a racially neutral reason for striking the juror.
Slade v. State,
9. Harris contends that his trial counsel was ineffective for failing to introduce documentary evidence or to call defense witnesses. At the hearing on the motion for new trial, however, she indicated that preservation of the right to opening and closing argument was used as a trial tactic. This is a recognized strategy of trial counsel
*428
which, under the circumstances of this case, does not demonstrate ineffective assistance.
Dewberry v. State,
Similarly, the degree to which an attorney chooses to cross-examine opposing parties’ witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics. “The fact that present counsel would pursue a different strategy does not render trial counsel’s strategy unreasonable. [Cit.]”
Nhek v. State,
Harris testified that his attorney told him that, if he requested a charge on voluntary manslaughter, he would likely be convicted and have no issues to raise on appeal. While admitting that she informed him of the likelihood of a conviction, she testified that she did not advise him that he would lose the right to appeal if he were found guilty of voluntary manslaughter. The trial court was authorized to believe trial counsel’s testimony rather than that of appellant. Moreover, considering the strength of the evidence, including Harris’ own inculpatory admissions, a conviction of at least voluntary manslaughter was almost a certainty and he would have no chance of prevailing on an appeal of the general grounds. Thus, even under appellant’s own version of the advice he received from his attorney, his decision to seek an acquittal based on self-defense rather than a conviction of a lesser included offense was a well-informed one.
Judgments affirmed.
Notes
The crimes occurred on October 25,1998. The grand jury indicted Harris on April 14, 1999. The jury found him guilty on November 22, 1999. The trial court entered its judgments of conviction and imposed the sentences on November 22, 1999. Appellant filed a motion for new trial on December 13,1999, and the trial court denied that motion on March 15, 2001. He filed a notice of appeal on April 2, 2001, and the case was docketed in this Court on May 16, 2001. Harris submitted the appeal for decision on August 14, 2001.